NELSON v. THE STATE OF NEW YORK, #2000-016-072, Claim No. 99643 and 99822

Synopsis

Pro se inmate claim based on inmate-on-inmate assault and property loss
was dismissed following trial.

Case Information

UID:

2000-016-072

Claimant(s):

STEVEN NELSON

Claimant short
name:

NELSON

Footnote (claimant name)
:

Defendant(s):

THE STATE OF NEW YORK

Footnote (defendant name)
:

Third-party
claimant(s):

Third-party
defendant(s):

Claim number(s):

99643 and 99822

Motion number(s):

Cross-motion
number(s):

Judge:

Alan C. Marin

Claimant's
attorney:

Steven Nelson

Defendant's
attorney:

Eliot Spitzer, Attorney GeneralBy: Mary Kavaney, AAG

Third-party defendant's
attorney:

Signature date:

September 26, 2000

City:

New York

Comments:

Official citation:

Appellate results:

See also (multicaptioned
case)

Decision

Claim no. 99822 of

Steven Nelson arises from an August 18, 1998 assault by another inmate on Nelson
at Otisville Correctional Facility. Claim no. 99643 involves lost property
following the assault. These claims were tried on August 1, 2000 at Mid-Orange
Correctional Facility. Nelson testified on his own behalf. Defendant called
correction officer Steven Montigny.

Nelson testified that on August 18, 1998, a close friend from his dormitory was
stabbed in a bathroom at Otisville Correctional Facility. After the incident, a
counselor came to interview all of the victim's dorm-mates, including Nelson.
According to Nelson, the counselor told him he knew that the victim and Nelson
were close friends and wanted to know if Nelson was involved or knew anything.

Nelson recounted that later that night, while he was in the "weight shack" in
the recreation yard, he was cut from behind on his face by another inmate. He
said he did not see who had attacked him, but another inmate pointed out the
culprit, so Nelson began chasing him, after which an officer intervened and told
them to stop the horseplay. The officer then apparently realized that Nelson
was injured and told the assailant to "stay put" while taking Nelson to the
facility medical clinic. After being seen at the clinic, Nelson was taken out
to Horton Hospital where plastic surgery was performed on him. Nelson pointed
out that a three-inch scar resulted from the incident.

Asked if he had ever been threatened prior to the assault, Nelson said that
"snide remarks" had been made to him (he did not elaborate), but said he never
told anyone at the facility that he had been threatened. Nor had he ever
requested to be separated from any other inmates. Nelson contended that an
officer should have been in the weight shack at the time of the incident, but
was in fact outside watching a game on the nearby soccer field; Nelson explained
that one officer is assigned to the soccer field and one to a booth attached to
the 20'x35' weight room. He estimated that at the time of the incident, the
closest officer was ten feet away from him.

After the surgery, Nelson was then sent back to the facility where he was
placed in the Special Housing Unit ("SHU"). When his property was brought to
him in SHU, he noticed that certain items were missing: four pairs of sneakers,
one pair of shoes, one pair of boots, a jacket, clippers, a Walkman with
adapter, pots, a fan, a lamp and cassettes. Because the property was missing,
Nelson refused to sign an "I-64" form. It was unclear whether these items had
been inside or outside Nelson's locker when he last left his dormitory.
Documents attached to Nelson's claim suggest that the items were secured, while
at trial, he testified that he did not keep all his property in his locker, but
rather kept only the higher valued items inside; there was no testimony as to
which category the missing items fit into. Nelson's theory as to the loss was
that immediately following the attack, facility personnel asked him where he was
housed – and wrote down the wrong "cube." Following the trial, Nelson
sent the Court a copy of a portion of a memorandum written by correction officer
D. Pauley, the officer who intervened when Nelson was chasing his attacker.
According to Nelson, the numbers "118-2, 22" in the memo wrongly identify his
cube as "22" instead of "26" and he thus contends that after the incident, cube
"22" was guarded instead of "26."

Officer Steven Montigny testified that on August 18, 1998, he was told by a
medical clinic officer that Nelson had been attacked and was asked to get a
clean shirt and undershirt for Nelson to wear to the outside hospital. Montigny
recalled that he was also asked to keep an eye on the property in Nelson's cube
-- which he said was number "26" – following the attack. He added that
facility personnel were not sure then whether Nelson's attack was related to the
earlier stabbing in the bathroom. Montigny explained that Nelson's cube was
eight feet from his desk. He conceded that he could not see directly inside the
cube, but explained that he could see if anyone entered Nelson's cube. A
memorandum written by Montigny on August 31, 1998 (see Exhibit 5) states that he
obtained the clean shirts and watched Nelson's cube from the time he was
notified of the attack at about 8:00 p.m. until 10:30 p.m., when officers
arrived to pack up Nelson's property. It also states that at no time did he see
anyone enter Nelson's cube or tamper with his property.

* * *

Liability for an inmate-on-inmate assault may be based upon one of the
following three grounds: (i) The victim is a known risk and the State failed to
provide reasonable protection (

Sebastiano v State of New York, 112 AD2d 562, 491 NYS2d 499 [3d Dept
1985]); (ii) the State had notice that the assailants were particularly prone
to perpetrating such an assault and failed to take proper precautionary measures
(Littlejohn v State of New York, 218 AD2d 833, 630 NYS2d 407 [3d Dept
1995]); or (iii) the State had ample notice and opportunity to intervene and
failed to do so (Schittino v State of New York, 262 AD2d 824, 692 NYS2d
760[3d Dept 1999]). All three bases are set forth in Rivera v State
of New York (Ct Cl # 96252, 1999, Bell, J.).

In this case, there was no evidence that Nelson was a known risk. In fact, he
testified that he had never informed defendant of any threats against him. Nor
was there any evidence that his assailant – as to whom almost no
information was presented – was particularly prone to perpetrating
assaults. As to the opportunity to intervene, Nelson contends that an officer
should have been in the shack attached to the weight room, but he presented no
evidence that any rules or regulations were violated in that regard. Moreover,
he said that at the time of the assault, the closest officer was ten feet away
and intervened when Nelson began chasing the attacker. In short, Nelson failed
to prove by a preponderance of the evidence that the assault could have been
prevented or that defendant failed to take an opportunity to intervene.

As to the lost property, Nelson presented no direct evidence to support his
theory that the wrong cube was guarded. Montigny specifically testified that he
guarded cube "26" -- Nelson's cube -- from the moment he was notified of the
assault at about 8:00 p.m. until officers came to pack up the items. While
Montigny conceded that he could not see directly into Nelson's cube, he stated
that he could see whether anyone entered the cube – and no one did.
Moreover, what of the time period while Nelson was at the weight shack before
the attack? It appears that the property could have been taken during that
period as well.

In sum, Nelson has failed to prove defendant's negligence by a preponderance of
the evidence. For the foregoing reasons, IT IS ORDERED that claim no. 99643 and
claim no. 99822 of Steven Nelson be dismissed.